Final Exam

Question 1

Requirements for judicial review:

Answer 1

• Rule exceeds scope
• Violates constitutional rights
• Rule applied in arbitrary fashion
• Violates public policy
• Organization breaks its own rule

Question 2

Standing

Answer 2

P’s right to bring complaint

Question 3

Standing Requirements

Answer 3

• Plaintiff must have sustained injury
• Court must possess power to grant a remedy for interest which plaintiff seeks protection
• Plaintiff must have interest in outcome of case

Question 4

Injunctive Relief

Answer 4

• Action by court to prevent future wrongs
• Prevents irreparable injury:
o risk of physical harm or death
o loss of special opportunity
o deprivation of unique, irreplaceable property

Question 5

Temporary restraining order

Answer 5

• emergency situations without notice to D

* generally lasts for 10 days

Question 6

Preliminary injunction

Answer 6

• granted prior to trial on merits of legal action

* D is given notice & opportunity to appear at hearing

Question 7

Preliminary injunction requirements:

Answer 7

• P will face irreparable harm
• Money damages are inadequate
• P can prove the balance of hardships favors him/her
• P possesses likelihood of success in case based upon merits

Question 8

Permanent injunction

Answer 8

• awarded as remedy following trial

* remains in force indefinitely

Question 9

State Action

Answer 9

• An entity that conducts activities that have such a close connection to the state that the entity may be considered to be an extension of the state itself.
• Constitutional claims are only appropriate when a state actor is involved

Question 10

Due Process

Answer 10

An expected course of legal proceedings established in U. S. system of jurisprudence for the protection and enforcement of private rights.
• Starting point is state action
• What right has been deprived?
• Life, liberty or property interests

How was their due process right violated?

Question 11

Substantive Due Process

Answer 11

Requires the rule or regulation to be fair and reasonable in application as well as content.

Inquiry Asks Two Questions:

1. Does the Rule or Regulation Have a Proper Purpose?
2. Does the Rule or Regulation Clearly Relate to the Accomplishment of That Purpose?

Question 12

Procedural Due Process

Answer 12

Examines the decision-making process that is followed in determining whether a rule or regulation has been violated and what sanction should be imposed.
In order to provide fairness, the court says that the greater the depreciation, the greater procedural due process that is owed to the plaintiff.

Question 13

Equal Protection

Answer 13

• No state shall deny to any person within its jurisdiction the equal protection of the laws
• Involves state action engaged in purposeful, rather than unintentional, discrimination
To determine if an alleged discriminatory practice is “constitutionally permissible” the court looks one of two areas:
Fundamental rights
Classification of people - The class affected by the rule or practice determines the standard of review used by the court

Question 14

Discrimination by classification

Answer 14

• Strict scrutiny - classifications based on race, ethnicity, national origin
Is law necessary to achieve compelling governmental interest
• Intermediate scrutiny - classifications based on gender & legitimacy of birth
Is law substantially related to important government interest
• Rational basis review - lowest level applied to all group classifications not historically associated with discrimination
Is law reasonably related to a legitimate government interest

Question 15

U. S. Constitution, Fourth Amendment:

Answer 15

The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.
•	Starting point is state action
•	Is the conduct a search?
•	Is search reasonable?
o	Probable cause

Question 16

Is the Conduct a Search?

Answer 16

• U. S. Supreme Court has held that the collection and testing of urine constitutes a search under the Fourth Amendment.

Question 17

Key question: Is the search reasonable?

Answer 17

1. Was search justified at its inception? (i.e., Was there reasonable suspicion)
2. Was search reasonable in its scope? (i.e., Degree of intrusion on individual’s privacy v. Government’s interest in testing)

Question 18

What is risk management and why should sport managers engage in risk management?

Answer 18

o Formal process of assessing exposure to risk
o Taking appropriate action to minimize the impact of risk
o Controlling financial and personal injury losses from sudden, unforeseen, unusual accidents and intentional torts.
o Management strategy to maintain greater control over the legal uncertainty that may wreak havoc on on a RLS enterprise.
o A proactive plan shows… intent evidence of intent to act responsibly.

Question 19

• What are the steps you should take in developing a risk management plan? (i.e., DIM process)

Answer 19

o	DIM
•	Developing the risk management plan
o	Identification risks
•	Negligent public liability
	Risk of bodily injury
	Failure to supervise
	Instruct or properly train employees
•	Non-negligent public liability
	Discrimination
	Products liability
	Contractual liability
	Employee actions
	Sexual harassment
•	Property loss
	Owned/leased property and equimpemnt:
•	Fire
•	Floods 
•	Theft
•	Vandalism
•	Business operations
	Financial losses due to personnel and non-personnel related risks

Question 20

How are risks typically classified?

Answer 20

o Severity of the risk or the potential impact of the risk upon organization
o Frequency of likelihood of occurrence of the risk

Question 21

Describe the 4 methods of treatment for risk.

Answer 21

o	1. Eliminate
•	Cancel program
o	2. Transfer
•	Insurance
o	3. Retention
•	Financially responsible for infuries and financial risks.
•	Typically used for minor injury payouts
o	4. Reduction
•	Training of employees
•	Facility inspections
•	Recording keeping
•	Appropriate supervision
•	Conduct of activity.

Question 22

• What is the duty of a sport organization to provide emergency care?

Answer 22

o Depends upon factors inherent in the situation, program or activity:
• Relationship to participants
• Risk in conducting activity
• Foreseeability of the injury
• Social utility of the activity v. likelihood of injury
• Magnitude of the burden on the service provider to provide emergency care.

Question 23

• How do you determine whether or not to allow a person with a contagious condition to participate in your sport program?

Answer 23

o School Board of Nassau County v. Arline (480 U. S. 273, at 288, 1987)
• The nature or the risk
• The duration of the risk
• The severity of the risk
• The probabilities the disease will be transmitted and will cause varying degrees of harm.

Question 24

• What is the sport organization’s duty to provide transportation?

Answer 24

o Proper maintenance of property and equipment
o Establishing emergency procedures
o Providing better training for personnel
o Other risk reduction techniques

Question 25

• What are the 4 options available for organization-sponsored transportation? Which is best and why? What risk management treatment methods are illustrated in these options?

Answer 25

o	Independent Contractor
•	Best option; liability shifts to contractor
	Verify insurance
	Evidence of ICC license number
	Age of equipment
	Safety record
	Demonstration of preventive maintenance. 
o	Organization-owned Vehicles
•	Organization liable;
	Must have insurance
	Maintain good equipment
	Inspect… etc
•	Driver qualifications
	Age
	Experience
	Special license
	Training
	Verification of driving record
	Vehicle
•	Establish road-worthiness; inspection
	Policies
•	Who authorizes travel plans?
•	What information should be documented?
o	Employee vehicles
•	Principle-agent relationships established
•	Organization vicariously liable
o	Non-employee vehicles
•	Vehicle not owned by an employee
•	Organization vicariously liable for negligence

Question 26

o Managing the Risks of transportation

Answer 26

•	Drivers obligations
	Valid driver’s license
	Use vehicles for business only
	Do not permit unauthorized drivers
	Use seat bels and observe speed limits
•	Who’s qualified
	Training
	Test
•	Accident protocol
	Reporting
	Investigation
	Recording keeping.

Question 27

• How do you determine the best type of insurance for your organization?

Answer 27

o Examine risks and potential losses
o Establish effective risk reduction program
o Identify remaining risks
o Determine magnitude that can be safely retained and transferred by contract
o Those risks which can significantly impact the organization should be covered by insurance

Question 28

• Be able to identify the following types of insurance:

Answer 28

o	General liability 
•	Protects from financial loss in the event a person is injured or property loss resulting from negligence of employees;
	AKA commercial general liability (CGL)
	Policy covers legal costs and awards up to limit
o	Umbrella liability
•	Provides increased liability protection beyond CGL
o	Property insurance 
•	Loss from damage or destruction of facilities
•	Contents and adjacent properties
•	Basic
	Protection against:
•	Fire
•	Malicious mischief
•	Lightening
•	Vandalism
•	Broad
	Hail
	Riots
	Explosion
	Windstorm
	Aircraft
	Smoke, etc…
•	Special
	Golf carts
	Theft by employees
o	Event insurance 
•	Typically used for special events; consideration to include might be:
	Additional insureds
	Non-appearance/cancellation of event
	Prize indemnity
	Breach of contract by media
	Anticipated revenues

Question 29

Facility audit.

Answer 29

• Systematic method of identifying risks related to a recreation or sport facility and determining the optimal method of treatment
• Helps provide reasonably safe facility which is duty of premises owner to users
• Facility problems are generally traced 2 primary causes:
 Poor facility planning and design
 Poor management

Question 30

Legal audit

Answer 30

o	Legal audit
•	Formal review of policies regarding legal aspects of the RLS organization
	Legal checkup to maintain legal health
•	Who should be responsible for overseeing the legal audits?
•	Legal audit content
	General org information
	Governance/authority of agency
	Financial information
	Personnel policies and records
	Operational licenses
	Partnership agreements
	Corporate formation
	Procedures 
	OSHA regulations
	Zoning issues
	Sponsorship contracts
	Real estate issues
	Crowd Management
	Property rights
	Compliance with government regulations
	Selling food/license permits

Question 31

• What are the recommended components of a risk management plan?

Answer 31

o Risk management plan is the systematic analysis of one’s operations for potential risks or risk exposure
o Implementing and maintaining a plan to reduce exposures
o Components of the risk management plan are:
• Organization description
• Personnel
• Facilities
• Conduct of activities and supervisory practice
• Crisis management and emergency action plans
• Insurance coverage

Question 32

• What is the goal of crisis management?

Answer 32

o Primary goal is to develop comprehensive, written contingency plans based on existing resources and operational capabilities that will enable managers to effectively respond to a crisis.
o Goal of crisis management is to develop a comprehensive, written contingency plan assist RLS manager is effectively dealing with crises.
• Personnel
• Facilities
• Equipment
• Emergency response and care
• Communication

Question 33

• What are the steps to developing a crisis management plan?

Answer 33

o	Identify sport or event security command group
o	Facility characterization
o	Threat assessment
o	Analyze vulnerabilities
o	Evaluate consequences
o	Analyze risks
o	Identify risk reduction strategies
•	Implementing the CMP
o	Determine who will be responsible for overseeing it
o	Identify emergency situations
o	Prioritize emergency situations
o	Determine duties and responsibilities of all staff positions
o	Practice, practice, practice

Question 34

• What are the general guidelines for dealing with a catastrophic accident and/or injury?

Answer 34

o	Be proactive
•	Develop written comprehensive plan
•	Establish team with specific responsibilities 
o	Show that you care
•	Notify appropriate family
o	Develop a strategy
•	Accident site
•	Notify immediate supervisor and agency director
•	Notify insurance carrier
•	Designate spokesperson for media
o	Stay involved
•	Follow-up with injured
•	Arrangements for family, if necessary.

Question 35

• Why develop an emergency action plan? What is the basic information that should be gathered for any EAP?

Answer 35

o	Emergency action plans
•	Essential part of risk management plan
•	Developing formalized and structured EAP
•	Proper planning is now expectation and accepted standard of care
•	Foreseeability
	Is it reasonable?
•	Ask “what if…..?” questions
o	Basics
•	Location of gas meters
•	Sprinklers
•	Water shut-off
•	Main electrical panels
•	Fire extinguishers
•	Chain of command
•	List of phone numbers
•	Facility drawings
•	Vicinity maps
•	Locations of nearest hospital, fire, police

Question 36

• What are underlying causes of crowd violence?

Answer 36

o Larger crowds evoke violence
o Low-level tension with so many people in close proximity
o Crowds provide a degree of anonymity
o Sale of alcoholic beverages

Question 37

• How can you more effectively manage a crowd through facility changes, staff and signage?

Answer 37

o	Implementing more effective crowd management:
•	Evaluate presence of alcohol
•	Duties/responsibilities for each position
•	Establish legal attendance capacities
•	Clean, well maintained facility
•	Do not turn off lights completely
•	Play soft music as crowd enters
•	Communicate with staff using codes
o	Trained competent staff
•	Ticket takers
	First line of defense
•	Screeners/searchers
	Identify and turn away prohibited items
•	Ushers
	Customer service personnel
•	Off-duty/uniformed officials
	A form of outsourcing
	Control crowds
	Expensive
o	Effective signage
•	Directional signs
	Provide patrons with directions to important locations
	(e.g. interstate; entrances/exits; main roadways; parking areas)
•	Informational signs
	Cite prohibited items (bottles, etc.)
	Rules of the facility

Question 38

• What factors does the court examine in determining the constitutionality of drug testing? (I.e., balancing test)

Answer 38

o U.S. supreme court has held that the collection and testing of urine constitutes a search under the Fourth Amendment

Question 39

• Explain how the establishment and free exercise clauses of the 1st Amendment of the U. S. Constitution impacts sport?

Answer 39

o Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”
o 1. The government cannot embrace or establish a specific religion; and,
o 2. The government cannot interfere with a person’s practice of his/her religious beliefs

Question 40

• Identify and define the 3 different forms used in analyzing cases involving religious matters.

Answer 40

o Forum analysis
• Public fora - traditional public areas such as a public park or sidewalk.
• Designated public fora - when the government intentionally opens a nontraditional forum for public discourse it creates a designated public forum.
• Nonpublic fora - government-owned property on which limitations of expressive activity may be made

Question 41

o What are the 3 tests the Supreme Court has developed to examine religious practices challenged under the 1st Amendment?

Answer 41

• Lemon Test:
1) whether the rule has a religious or secular purpose;
2) if it advances or inhibits religion; and
3) if it favors an “excessive governmental entanglement with religion.
• Coercion Test - religious activity is analyzed to determine the extent, if any, to which it has a coercive effect on the participants.
• Unconstitutional coercion occurs when
• 1) the government directs
• 2) a formal religious exercise
• 3) in such a way as to oblige the participation of objectors.
• Endorsement Test - does the government (state actor) endorse a particular religion?

Question 42

Statutory Law - Rehabilitation Act of 1973

Answer 42

• “No otherwise qualified handicapped individual in the United States, …. shall solely, by reason of his handicap, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance.”
o Key elements of this legislation that must be proved:
• That the person does have a disability (limiting one or more major life activities),
• That he/she is otherwise qualified for the activity,
• That he/she is being excluded solely by reason of his/her disability; and,
• That the organization is receiving federal financial assistance.

Question 43

Statutory Law - Americans with Disabilities Act

Answer 43

• ADA is composed of 5 sections:
 Title I: discrimination in employment
Title II: discrimination by local & state government
Title III: discrimination in public accommodations or private agencies open to public
Title IV: discrimination in telecommunications
Title V: miscellaneous areas
• Title II
 No qualified individual with a disability shall by reason of such disability be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity or be subjected by any such entity.
• Title III
 No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases, or operates a place of public accommodation.

Question 44

• Be able to articulate “reasonable accommodation” and “fundamentally altering” clauses of the ADA and how that might impact a sport provider and/or employer.

Answer 44

o Facilities - An architectural barrier is “any physical element that impedes access by people with disabilities.”
o Modifications to existing facilities are not required unless these modifications are readily achievable. Readily achievable refers to removing barriers that are easily accomplished without much difficulty or expense.
• Programs:
 1) rule changes can neither alter the basic nature, structure, or integrity of a sport;
2) cannot give individuals with disabilities an unfair advantage; nor
3) place non-disabled participants at a disadvantage.

Question 45

Title I of the ADA

Answer 45

o Title I of the ADA
• No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employees compensation, job training and other terms, conditions and privileges of employment
• Applies to any employer with 15 or more employees for each working day in each of 20 or more calendar weeks in the calendar year
o Defining the Terms
• Disability: a physical or mental impairment that substantially limits one or more of the major life activities of such individual
• Major life activity: fundamental aspects of human living; caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, learning
• Qualified individual with a disability: An individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such an individual holds or desires.
o Categories of individuals protected:
• 1. Individuals who have a physical or mental impairment that substantially limits one or more major life activities;
• 2. Individuals that have a record of a physical or mental impairment that substantially limited one or more of the individual’s major life activities, and;
• 3. Individuals who are perceived as having such an impairment whether they have the impairment or not.
o Reasonable Accommodation
• Make existing facilities reasonably accessible to and usable by individuals with disabilities.
• Job restructuring, part-time or modified work schedules
• Acquisition or modification of equipment or devices
• Appropriate adjustment or modifications of examinations, training materials or policies
• Provision of qualified readers or interpreters
• Similar accommodations for individuals with disabilities.
o Employer’s Obligations
• Must not deny a job to a person with a disability if person is qualified and able to perform essential job functions
• Do not have to lower existing performance standards or stop using tests for a job
• No pre-employment inquiries about a person’s disability
• Review job application forms, interview procedures & job descriptions for illegal questions
• Develop job descriptions for every job

Question 46

• What does Title IX mean to educational institutions?

Answer 46

o “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under and education program or activity receiving Federal financial assistance.”
• Basic elements which must exist:
 Gender discrimination
 Federal funding
 Education program
o Primary function need not be solely educational, but only needs to include an educational component.

Question 47

• How does the 1979 Policy Interpretation impact intercollegiate athletics?

Answer 47

o Substantial proportionality is measured by comparing the percentage of undergraduates enrolled to the percentage of student-athletes by sex
o Institution can show a history and continuing practice of program expansion responsive to the developing interest and abilities of the members of the under represented sex
o Institution can show that it is fully and effectively meeting the interests and abilities of the under represented sex
• unmet interest sufficient to sustain a varsity team in the sport; sufficient ability to sustain an intercollegiate team in the sport; reasonable expectation of intercollegiate competition for a team in the sport within the school’s normal competitive region

Question 48

• What are the primary methods of Title IX enforcement?

Answer 48

o Title XI Enforcement
• Responsible for communicating and educating faculty, staff and students about Title IX
o Office of Civil Rights
• Investigates complaints about Title IX violations
o Federal Lawsuit
• File a complaint with federal district court.

Question 49

• What steps can be taken to provide gender equity?

Answer 49

o 1. Strongly consider adding or elevating a women’s sport to varsity status if the requesting female athletes can show evidence of interest and ability to compete and a reasonable expectation of competitive opportunities for the team.
o 2. In keeping with the spirit of the law, try to consider alternatives to dropping men’s sports when attempting to move toward Title IX compliance. Recognize that Title IX does not mandate that schools create more opportunities or spend more money on women’s sports; instead, it leaves the choice of method for achieving compliance up to the individual school–until it is successfully sued.
3. Know that when boosters or alums give money in support of a sex-specific program, the Title IX regulations require the school balance that money with an equal amount of financial support for the other gender’s programs. A good way to handle this is to make clear in fund raising campaigns and literature that the law requires you to do this type of balancing, so that a large gift could actually hurt the overall athletics program unless it is not restricted by sex.
4. Remember that Title IX applies to club sports and intramurals as well as to varsity sports, so be sure to evaluate the compliance status of those types of programs.
5. Consider capping the number of walk-ons allowed in men’s sports.
6. Consider supporting the Women’s Sports Foundation proposal that the NCAA reduce the number of football scholarships from 85 to 60 and limit the total number of football players, including walk-ons to 80 per team.
7. Be sure to consider the “laundry list” of athletics benefits found in Title IX regulations whenever making decisions about expenditures on publicity, hiring coaches, creating or upgrading facilities, and scheduling practices.
8. Ensure the gender ratio of dollars spent on athletic scholarships grants the gender ratio of participating athletes.
9. Conduct training seminars for coaches and players that provide guidance on avoiding behavior and comments that could be construed as sex discrimination.
10. Be wary of inviting a negligence lawsuit by taking shortcuts to Title IX compliance that would increase the numbers of female athletes but do so in an unsafe manner or increase the risk of injury by not ensuring adequate facilities and coaching supervision.
11. Invite Title IX consultants to campus to assist with program evaluation and development of compliance strategies.
12. Reallocate resources in a more equitable fashion by identifying ways to reduce unnecessary or extravagant costs.
13. Plan fund raising efforts to increase resources available for sports for females, including corporate sponsorships.
14. Do not become reliant on soft money as part of your regular athletics budget, but put donated money into interest-bearing accounts that will continue to generate income in perpetuity.
15. Conduct a self-evaluation of your program by utilizing checklists available online: National Women’s Law Center (www.nwlc.org).